Medicinal or Criminal: Medical marijuana cards in Ohio

CINCINNATI (WKRC) – Local 12’s Investigative reporter Duane Pohlman continues his exclusive investigation of a case that will likely test whether using medical marijuana, which was legalized in Ohio in 2016, is still a crime.

THE ARRESTS

Cincinnati residents, Deron Elliot, Ian Overton, Stephanie Kidwell and Amanda Meyer had just picked up more than ten pounds of medical marijuana products from a dispensary in Ann Arbor, Michigan and were driving back to the Tri-State.

They say they thought the law was on their side. After all, they had medical marijuana cards issued by an Ohio doctor. But, as dash cam video provided by the Ohio State Highway Patrol clearly shows, it didn’t take long for the trooper to act. “Everyone here put their hands up on the seats for me,” the trooper is heard on the recording, just before everyone is arrested on Interstate 475 near Toledo at 4:30 p.m. on February 24th.

You can also hear Elliot stating inside the car, “I got AFib. I got heart disease,” as he was questioned.

Meyer, who was arrested first for allegedly driving with a suspended license and for an outstanding warrant, informs another trooper, “I have the card.” A trooper responds, “But that’s not legal in Ohio.”

When asked for a comment for our story, Ohio State Highway Patrol Lt. Robert Sellers wrote, “I cannot comment on a pending case.”

In a search of the car, troopers found the clearly-marked marijuana-based products, including THC-infused rice crispy bars.

THE CHARGES

Now, all four face multiple felony counts of possession and trafficking in marijuana and hashish.

In Lucas County, Elliot, Overton and Kidwell faced a judge during their arraignments. The doctor who issued the medical marijuana cards was there for the arraignments, too.

Dr. Ryan Lakin, a Toledo physician who is one of the nearly 100 doctors now certified by the state of Ohio to recommend medical marijuana, says he’s perplexed why his patients are facing the charges. “We were operating under the assumption that the law was on our side,” Dr. Lakin said.

In the shadow of the old courthouse, Elliot said he was stunned by the charges. The next thing you know, we get charges in the mail and we’re facing 33 years in prison,” said Elliot after being assigned a public defender.

When asked if he was scared, Overton answered, “I’m terrified.”

THE CARDS AND THE LAW

While Dr. Lakin issued medical marijuana cards to the patients, the official cards are not yet being issued by the State of Ohio. “We don’t understand why we’re here,” Dr. Lakin said, insisting he would not have issued the cards if he knew any of his patients would be facing felony charges.

“We were operating under the assumption that the law was on our side.” Dr. Lakin said, adding, The medical board is certainly on our side.”

But since Ohio passed the medical marijuana law in September of 2016, it has not been that clear.

In a statement from in October of 2016, the Ohio Medical Board wrote, “If Ohio physicians wish to recommend medical marijuana before the rules are in place, we the Board strongly recommend that they contact a private attorney because the legislation is not crystal clear.”

The board also stated that the law relies on affirmative defense. That means people, like the four defendants from Cincinnati, should not face legal consequences if they are within the guidelines of the new law.

And that, Dr. Lakin says, is what he relied on when he began issuing medical marijuana cards.

“We started doing that in October of 2016 after we received clarification from the medical board that the affirmative defense provision of House Bill 523 went into effect, immediately,” Dr. Lakin said.

But the validity of an affirmative defense is not decided on a highway where the arrests happened, but in courtroom, which is exactly where the facts of these cases will be heard.